BIA Issues Decision On Effect of Vacated Criminal Conviction on Noncitizen’s Status

Even if your criminal court conviction was expunged, it may continue to have repercussions for your immigration case.

In Matter of Marquez Conde, 27 I. & N. Dec. 251 (Apr. 6, 2018), the Board of Immigration Appeals (BIA or Board), held that Matter of Pickering, regarding the effect of a vacated criminal conviction on a noncitizen’s status, applies nationwide.

The details are as follows: A non-citizen was convicted of a theft offense in Texas. The Texas state court granted a motion for permission to dismiss the criminal action was granted and his case was dismissed. In immigration court, both the non-citizen and DHS argued that the respondent’s conviction had been vacated based on a substantive defect in the underlying criminal proceeding and was therefore no longer a “conviction” for immigration purposes. Notwithstanding the arguments of the parties and the evidence they presented, the IJ found the respondent statutorily ineligible for cancellation of removal under INA § 240A(b)(1)(C) because his conviction was for an offense under INA § 212(a)(2)(A)(i)(I) (crime involving moral turpitude). The IJ relied on Renteria-Gonzalez v. I.N.S., 322 F.3d 804 (5th Cir. 2002), in concluding that a vacated conviction remains valid for immigration purposes regardless of the reason for the vacatur.

The respondent appealed, and DHS and the respondent filed a joint brief in support of the appeal. In Matter of Pickering, the Board declined to adopt the Fifth Circuit’s reasoning in Renteria and held that if a court vacates a non-citizen’s conviction because of a procedural or substantive defect, rather than for reasons solely related to rehabilitation or immigration hardships, the conviction is eliminated for immigration purposes.

As such, persons with criminal convictions should work with their criminal defense and immigration counsel to see whether there was a substantial defect or procedural issue in their prior proceedings so that their convictions can be vacated.

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